Before: Hon’ble Member, Debi Sengupta.
Hon’ble Member, Samaresh Kumar Mitra.
FINAL ORDER
Debi Sengupta, Member.
This is a case U/s.12 of the Consumer Protection Act, 1986 filed by the complainant, Raj Kumar Sha.
The fact of the complainant in a nutshell is that complainant is an account holder of O.P. No.1, Axis Bank Ltd. and his current account being No.915020030598682 and in respect of the said account the complainant also hold the ATM Card and has been using the same since 5.7.2014.
On 7.5.2016 the complainant visited the Axis Bank ATM booth at about 7 PM to 8 PM at B.P. Dey Street of Axis Bank Ltd. and tried to withdraw for Rs.20,000/- but money was not come out. Then the petitioner called the security personnel and asked about it. The security person also tried but found the same result. The security person assured the petitioner that server went down and money would be un-changed in the said account. There after the complainant went to Kashmir for tour.
After returning from Kashmir the complainant approached before the O.P. Bank on 16.5.2016 and Manager informed him that bank debited Rs.40,000/- from the account of the complainant. The complainant gave a written complaint on 13.6.2016.
That several reminders were given to the Axis bank about the unauthorized withdrawal of Rs.40,000/- but having no fruitful result. The complainant lodge GDE before the IC, Serampore P.S. vide No.1811 dated 29.6.2016. Thereafter the complainant submitted a complaint before the Banking Ombudsman against Axis Bank praying for relief.
After taking procedural complaint in the specific format vide order dated 12.12.2016 that due to illegible C.C. TV footage final decision cannot be taken without further investigation and as such said complaint was not finally decided but rejected under clause-13(c) of Banking Ombudsman Scheme 2006 and said ombudsman further advised that complaint is not constrained from approaching any other legal forum or authority in accordance with laws for the redressal of grievance.
On 23.11.2016 the petitioner was called by the O.P. Bank i.e. Axis Bank Ltd. stating that on 7.5.2016 complainant had not withdrawn Rs.40,000/- at about 11 AM to 12 AM. Then the complainant replied that at the said relevant time the complainant did not attend any ATM on 7.5.2016, so question of withdrawal of Rs.40,000/- does not arise. Then the person of the O.P. Bank replied that there have been the CC TV Footage. The complainant wanted to see the CCTV Footage. Then the person replied to visit the office of the O.P. Bank but complainant did not attend there.
Due to the latches as well as deficiency and/or machinery fault of the O.P. No.1 the complainant has been facing great loss with severe mental agony and having no other alternative the complainant has been compelled to file this complaint before this Forum for relief with a prayer to direct the O.P. to pay Rs.1,00,000/- for the false deduction/withdrawal of Rs.40,000/- from current account of the complainant, to pay Rs.30,000/- as litigation cost.
The O.P. No.1 contested this case by filing written version denying inter-alia all the material allegation as alleged leveled against him. The O.P. No.1 states that the complainant suppressed material facts from this Ld. Forum and also alleged that the complainant did not file the basic documents i.e. the ATM Machine slip and deliberately has filed this case with a intention to gain financially at the cost of the O.P. bank and further prayed that to dismiss this case on this ground. In para- 3 of the written version the O.P. alleged that the complainant opened current account for commercial and business purpose. So, it is not maintainable in this Forum. O.P. states that in regard to para-1 & 2 of the complaint petition is a matter of record and denied and disputed that there was no server problem or any technical problem as falsely stated by the complainant. In regard to para-3 of the complaint is a matter of record. In para-4 & 5 the O.P. states that there is nowhere in the petition that when the complainant had knowledge of debit of account. The O.P. states that the ATM cash withdrawal functions can be effected only by using original debit card and confidential pin number known only to the customer and further alleged that somebody having close relationship might have withdrawn the amount. In regard to para-6 & 7 of the complainant petition the O.P. denied the allegations and states that it is a matter of record. The O.P. also denied all the allegation made in para-8 to 11 of the complaint petition and further states that the thousands and thousands of account holders utilize the ATM and the machine never failed to show the correct deposit or withdrawal. The record and EJ file clearly prove the amounts in question never dispensed by the ATM machine. The opposite party relying upon the judgment passed by the Hon’ble NCDRC in the case of State Bank of India Vs. K.K.Bhalla. The National Commission has held that in the light of the fact discussed, merely because CCTV was not working on the date on which the fraudulent transaction took place does not mean that money could be withdrawn fraudulently without using the ATM card and the pin number. In case the ATM card had been stolen or pin number had become known to the other person. The O.P. therefore prayed and submits that there is no deficiency on the part of the O.P. and the complaint is liable to be dismissed as the allegations or negligence or deficiency in service are wholly misconceived, groundless and the complainant is not liable to be get any relief.
After perusing the complaint petition and evidence on affidavit it is evident that the complainant is the consumer of O.P. bank. Here in urgent need of money ran to the Axis Bank ATM and tried to withdraw money. The complainant alleged that he attempted for withdrawal of money but no money came out and thereafter the complainant tried to another ATM machine but same thing happened. The complainant asked the O.P. bank Manager stating all the facts. Having no fruitful result the complainant submitted a complaint to the banking ombudsman against the O.P. No.1. The complainant lodged a formal complaint in the prescribed format.
The complainant filed one letter addressed to the complainant of Reserve Bank of India reference No.Kol/0B0/1737/2016-2017 dated 12.12.2016 wherein the Reserve Bank of India stated that the para-2 of the letter. The bank vide reply dated 12.11.2016 submitted EJ log, switch report and cash balance report which indicates that the two transactions of Rs.20,000/- each were successful and cash was disbursed. The bank has also submitted CD of video footage and certified that time as per CCTV footage from 12.20 PM to 12.15 PM dated 7.5.2016. Para -3 of the Reserve Bank of India’s letter dated 12.12.2016 it is stated that the CCTV footage was run on our PC and it was observed that one person entered the ATM room (face not detectable due to light coming from behind), used his card wise and received cash twice. Thereafter, he tried a card again but the same appeared not to have been read by machine. He then went to other ATM for some time, but his activities in that machine was not captured properly by the camera. He again came back to the previous machine, tried a card again but did not key in anything. Then he left the ATM room. From the above it is not possible to (1) identify the person operating the ATMS during that time (2) identify how many cards he tried (3) which card he used for those two transaction where he received cash. This required further investigation involving consideration of elaborate documentary and oral evidence and the proceeding before the banking ombudsman are not appropriate for adjudication of such complaint. The complaint therefore may be rejected under clause-13(c) of Banking Ombudsman Scheme, 2006. The examination revealed that the complainant made is requiring consideration of elaborate documentary and oral evidence and the proceeding before banking ombudsman are not applicable for adjudication of such complaint. The complaint therefore rejected under the clause-13(c) of banking ombudsman scheme, 2006.
The discussion made herein before we have no hesitation to come in a conclusion that the complainant has proved his case. In Vidyabati Vs. State Bank of India and Ors. (RP No.4868/2012 decided on 18.2.2015). The allegation was that there had been unauthorized withdrawal from the Savings Bank Account of the complainant as well as some other person. This Commission held that since the money had been wrongly withdrawn by the foul play from the account of the complainant as well as some other person, the bank was liable to make good the loss.
In another case in State bank of India Vs. Dr. J.C.S. Kataky, Revision Petition No.3073 of 2016 order dated 3rd may, 2017, the Hon’ble National Commission held that once the complaint was made citing specific incidents of unauthorized withdrawal, it was the duty of the bank to have carried out the necessary verification in the matter, rather than washing their hands off from the whole episode.
In a case decision of Hon’ble State Commission, Uttrakhand in Punjab National Bank Vs. Vineet Kumar & Another, first Appeal No.196 of 2014, wherein it is held that ‘the ATM machine was used of the Punjab National Bank and because of the fault of ATM machine, the amount was shown withdrawn and State Bank of India has no role in the said transaction of ATM. Only the complainant was having a savings bank account in the state bank of India. The liability if any is of Punjab National Bank.’
It is to be mentioned that when the bonafide customer of the bank are making complaint against the bank when they are not getting proper service as a consequence they are compelled to take recourse of this Forum as it is a social legislation. The complainant herein being responsible person is fully aware of his rights and duties he never compromise with the justice upon him. It is fact that opposite party bank getting complaint from the complainant never tried to investigate the matter or showed good gesture upon the complainant to credit the same amounts which have been debited from his account through ATM transaction but not received by the complainant. It is the duty of the bank to investigate the matter if any crime committed in the ATM counter of the opposite party bank. But in the instant case the opposite party No.1 bank always tried to evade its responsibility on the false pretext and never tried to provide service to its customer/consumer/beneficiary. The complainant by producing sufficient evidence established that the opposite party No.1 is deficient in providing service to this complainant. As such the complainant suffered at the behest of negligence on the part of the opposite party No.1.
From the above discussion we may safely conclude that the opposite party No.1 is deficient in providing service towards this complainant who is a consumer of opposite party No.1 and availed the ATM machine of the opposite party No.1 for which O.P. No.1 bank is liable to pay compensation and other relief as prayed in the prayer portion of the complaint petition to that extent ascertained by this Forum. Hence, it is
Ordered
that the complaint case being No.117/2017 be and the same is allowed on exparte with cost of Rs.5000/-. The opposite party No.1 is directed to refund Rs.40,000/-, which falsely deducted from the complainant’s current account, to the complainant. The opposite party is also directed to pay Rs.20,000/- as compensation towards mental agony and harassment to the complainant. The above directions will be complied with within 45 days from this date of order.
At the event of failure to comply with the order, opposite party shall pay cost of Rs.50/- for each day delay, if caused on expiry of 45 days by depositing the amount in the Consumer Legal Aid Account.
Let the copies be supplied to the parties free of cost.
